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Collective Bargaining and Freedom of Association

From: Public Law at the McLachlin Court

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In the British Columbia Health Services case, the Supreme Court of Canada surprised the labour law community by dramatically reversing twenty years of entrenched jurisprudence. Ever since the 1987 Labour Trilogy the Court had consistently excluded the institution of collective bargaining from the protective embrace of the Charter section 2(d) guarantee of freedom of association. In Health Services it included collective bargaining within the reach of that embrace. Health Services, then, joins that constellation of recent public law decisions of the Court in which it has reversed (although admittedly not quite so dramatically) what had been heretofore understood to be settled law.

Perhaps what we are witnessing is a maturing of our Charter jurisprudence as the Court gradually and ever more boldly departs from the dominant mode of deontological jurisprudential inquiry which characterized the common law and its narrow focus on the parties before the court; and more consciously espouses an openly instrumentalist or consequentialist mode of jurisprudential inquiry, one which looks beyond the immediate parties before the court to the broader sociological implications of the disputes it is called upon to determine.

In the first two parts of this paper, I explore Health Services from this perspective. In the third, I then frame the place of the strike in our pre-Charter jurisprudence, and prognosticate on whether it too is swept under the protective umbrella of the Charter, section 2(d), freedom of association; I believe it can only be so. Finally, I explore the intriguing question whether in Health Services the Supreme Court has conferred constitutional status upon trade unions. Underlying the whole inquiry is the far-reaching question: whether broad-sweeping caselaw such as Health Services, which consciously considers normative outcomes as its justificatory criterion, has the necessary staying power to ensure that stability, predictability, and uniformity of result so central to the rule of law.

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Thomas Kuttner

Thomas Kuttner, Q.C. is Ron Ianni Visiting Scholar, Faculty of Law, University of Windsor, and formerly was a professor of law at the University of New Brunswick.